143 Affirmative action efforts found impermissible

The Complainant, a non-minority, was certified for a position. The person who ultimately was appointed was a minority who became eligible on the basis of an expanded certification that the employer conceded was illegal because a valid workforce analysis had not been conducted in accordance with sec. 230.03(4m), Stats. The illegal use of expanded certification in this manner violated the Complainant’s rights under the Wisconsin Fair Employment Act to have been considered for this position without consideration of race except in the context of valid affirmative action considerations which were not present here. The Respondents may have been acting in good faith reliance on existing policies. They may not have had a specific intent to discriminate against the Complainant on the basis of his race. However, this is not a recognized defense in cases involving selection decisions made pursuant to illegal affirmative action plans. Paul v. DHSS & DMRS (Wis. Pers. Comm’n, 03/30/93).

An affirmative action plan which compared utilization to percentages of various minorities in the state population was improper, where the statutory requirements for the affirmative action plan provided that utilization should be measured against various minority groups’ representation “in that part of the State labor force qualified and available for employment” in the positions in question. Holmes v. DILHR (Wis. Personnel Comm’n, 04/15/87); Kesterson v. DILHR (Wis. Personnel Comm’n, 12/29/86).

There was probable cause to believe that the Respondent discriminated against the Complainant, who was white, in utilizing expanded certification pursuant to an affirmative action plan which was not legitimate because (1) it was based on state-wide minority population statistics rather than on statistics measuring the percentage of minorities in the qualified labor market for the position in question, (2) it did not meet statistical standards developed for proving disparate impact, and (3) it was inconsistent with applicable statutory requirements. Paul v. DHSS & DMRS (Wis. Pers. Comm’n, 06/19/86).

An affirmative action plan was improper when the plan measured utilization of minority employees by the employer against the general population statistics rather than against statistics measuring the percentage of minorities in the qualified labor market for the position in question. Paul v. DHSS (Wis. Pers. Comm’n, 06/19/86).

An employer did not rebut a prima facie case of sex discrimination by showing that it hired a male over a female to balance the male-female teacher ratio in its business education department. Joint Dist. No. 1, City of Menomonie v. DILHR (Ricks) (Dane Co. Cir. Ct., 04/28/77).

The Respondent admitted that it hired a woman for a particular position because of her sex, pursuant to an affirmative action plan. The Respondent did not show that the work of the female employee selected for the job was as good as the work done by a more qualified male employee. While hiring females may have been a desirable goal, the method whereby the Respondent accomplished such an end was discrimination based upon sex. Absolute preferences, absent a showing of past discrimination, are unlawful. Kostroski v. American Can (DILHR, 04/28/77).

The authority to promulgate sec. PERS 27, Wis. Adm. Code, which provided for an absolute preference in hiring in favor of women and minority group members, was not fairly implied from a statute which authorized “exceptional methods” to employ the “disadvantaged.” Other statutes cast doubt on the view that the legislature impliedly authorized absolute preferences. Insofar as the rule authorized the establishment of employment lists that constituted absolute preferences based upon sex or race, it was void ab initio as not having been within the authority granted by the legislature. Finding the rule to be void on that basis, the court did not need reach the issues of whether the absolute preferences provided for in the rule violated the Wisconsin Fair Employment Act, Title VII, or the equal protection clause. State v. DILHRM, 77 Wis. 2d 126, 252 N.W.2d 353 (1976).

An administrative rule, promulgated pursuant to a governor’s executive order which authorized exclusive consideration of minority and female applicants for certain state jobs, violated the state constitution. The statute which authorizes special consideration for handicapped persons was not authority for affirmative action on behalf of minorities and women. State v. DILHR, 77 Wis. 2d 126, 252 N.W.2d 353 (1976).

A Wisconsin Department of Administration rule providing for absolute preferences based on sex and race in certain hiring situations for state employment violated the Wisconsin Fair Employment Act. Absolute preferences do not differ materially from unlawful hiring ratios, particularly where the employee presents no evidence to show that such preferences are the only viable alternative to reach its affirmative action goal. Patzer v. DOA (DILHR, 10/31/74), aff’d sub nom. DOA v. DILHR, 77 Wis. 2d 126, 252 N.W.2d 353 (1977).